The ICC’s Failure to Prosecute Assad Is Its Death Knell

Eric Posner weighs in.
Sept. 19 2013 2:40 PM

Assad and the Death of the International Criminal Court

The failure to prosecute him will be the end for the ICC’s brand of global justice.

Syria's President Bashar al-Assad
Syrian President Bashar al-Assad speaks during an interview with Fox News in Damascus on Sept. 19, 2013.

Photo by Sana via Reuters

Numerous commentators argue that Syria’s President Bashar al-Assad should be tried for war crimes before the International Criminal Court. If anyone ought to be prosecuted for war crimes, it’s this reviled leader, who almost certainly directed poison gas attacks against civilians. But as Joshua Keating explained in Slate, it’s not going to happen. This, just the latest blow to the ICC, illustrates once again why the prospect of international justice through global courts is ever receding—and why the court’s own days may be numbered.

The idea that dictators who cause wars and kill civilians should be tried and punished is a modern one, but it has roots in the distant past. Armies always believe that their cause is just and thus that the enemy deserves punishment. When the Mongol ruler Timur defeated Bayezid I of the Ottoman Empire in 1402, Timur allegedly had Bayezid paraded around in a cage and used him as a footstool. As civilization advanced, however, rulers increasingly were not held personally liable for war-making and its attendant atrocities. Napoleon was confined to Elba and St. Helena not to punish him for war crimes but to prevent him from starting wars in the future.

After World War I, this thinking began to change. The victors planned to prosecute Kaiser Wilhelm II for war crimes but abandoned this idea, using the excuse that Holland of all places refused to extradite him. Maybe the victors were intimidated by his impressive mustache, but more likely they preferred to blame Germany as a country and force it to pay reparations (a ruinous decision that seeded the malign flora of Nazism).

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The winners of World War II did not repeat this mistake. The Germans were not held collectively responsible for Nazi atrocities. Instead, the worst of the bad guys were tried at Nuremberg and in Tokyo. But the postwar proceedings faced a problem. Hitler’s and Tojo’s invasions of innocent countries—and even Hitler’s massacre of civilians at home—did not violate any rule of international law that came with personal criminal liability. Leaders were tried and punished nonetheless, but doubts about legitimacy lingered, since the trials lacked a basis in international law even while they condemned defendants for violating it.

After the Cold War, the idea of prosecuting warmongers was revived. The civil war in Yugoslavia and the genocide in Rwanda spurred the U.N. Security Council to establish two tribunals to try participants for international crimes. These tribunals rested on a somewhat firmer legal basis than Nuremberg and Tokyo. Yugoslavia and Rwanda had given theoretical consent to Security Council authority decades earlier and so could be considered bound to its resolutions. Still, the Yugoslavia trial could be seen as victor’s justice—an impression reinforced by the fact that the tribunal was deprived of authority to try any Westerners who committed war crimes, such as NATO pilots who dropped bombs on civilians. Serbians in particular claimed that the tribunal was biased against them.

The ICC was meant to put an end to the cycle of doubt. The rosy vision was that all countries would voluntarily submit to its jurisdiction, so no single country could claim that it would be singled out for victor’s justice. The logic is similar to the logic behind arms-control agreements: I concede that chemical weapons are bad, but I will not give up my chemical weapons unless I’m sure that my possible enemies will give up theirs as well. International cooperation is a delicate business in which all the protagonists gradually lay down their knives while keeping an eye on one another to ensure that no one gains a slight advantage by laying down his knife more slowly than the others.

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